Brewer v. Simental

• Decision Date: 10 September 2008
• Docket Number: No. 10-07-00094-CV.,10-07-00094-CV.
• Parties: Van Lee BREWER, Appellant, v. Jason A. SIMENTAL, Gordon Townsend, Carl Davis, David Duke, Janet C. Taylor, Lindsay Lewis, Robert Losack, and John D. Seigle, Appellees.
• Court: Texas Court of Appeals

268 S.W.3d 763

Van Lee BREWER, Appellant, v. Jason A. SIMENTAL, Gordon Townsend, Carl Davis, David Duke, Janet C. Taylor, Lindsay Lewis, Robert Losack, and John D. Seigle, Appellees.

No. 10-07-00094-CV.

Court of Appeals of Texas, Waco.

September 10, 2008.

Van Lee Brewer, Huntsville, pro se.

L. Brandy Bramlett, Asst. Atty. Gen., Austin, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Van Brewer, a prison inmate at the Wynne Unit in Huntsville, is appealing the trial court's dismissal order of his section 1983 civil-rights suit against eight Texas Department of Criminal Justice—Institutional Division employees: Jason A. Simental, Gordon Townsend, Carl Davis, David Duke, Janet C. Taylor, Lindsay Lewis, Robert Losack, and John D. Seigle. We will reverse and remand.

Factual Background

Brewer's claims center around the alleged misconduct of Simental, a correctional lieutenant in the Wynne Unit's Administrative Segregation (Ad. Seg.) unit at the time. According to Brewer's petition, in October of 2005, Brewer was involved pro se in civil litigation pending before the Texas Supreme Court with a pending October 14 deadline that necessitated access to the prison's law library. Brewer was assigned work hours of 1:00 to 9:00 p.m. on a utility squad, so he was requesting and being granted law library official passes (internally called "lay-ins") from 5:50 a.m. to 7:55 a.m. and 9:00 a.m. to 11:00 a.m. The law library staff could not issue lay-ins for times when an inmate was scheduled to be working, and the staff checked Brewer's assigned work hours on a computer before issuing his lay-ins.

The gist of Brewer's claim is that Simental unilaterally and without authority (including no official work duty reassignment) assigned Brewer to work utility in Ad. Seg. at 5:00 a.m. to keep Brewer out of the law library. When Brewer did not report because he had a law library lay-in (and also because he had been removed from working in Ad. Seg. because of an altercation with an Ad. Seg. inmate in 2002), Simental, individually and at times with corrections sergeant Gordon Townsend and corrections officers Carl Davis or David Duke, removed Brewer numerous times from the law library and assigned him to his cell for not reporting to work in Ad. Seg. at 5:00 a.m. In response, Brewer filed grievances against them for not allowing him law library access and violating TDCJ's Access-to-Court Policy. Simental, Davis, and Duke retaliated by filing several disciplinary charges against Brewer, and Brewer filed more grievances for their filing false disciplinary charges.

Brewer alleges that Janet C. Taylor (an administrative assistant), Lindsay Lewis (a grievance investigator), Robert Losack (corrections captain and disciplinary hearing officer), and John D. Seigle (corrections sergeant and law library supervisor) conspired in one way or another with Simental. With Taylor, Simental had Brewer's work assignment changed ex post facto on the computer to validate Simental's actions. With Seigle, Simental had Brewer's law library access taken away. With Lewis and Losack, Simental had Brewer's Ad. Seg. restriction removed, had Brewer's grievances denied, and had Brewer disciplined. Brewer was disciplined with several thirty-days' commissary restrictions, thirty-days' cell restrictions, loss of contact visitation, a forty-five days' property restriction, and line class reductions.

Procedural Background

With the filing of his section 1983 lawsuit on January 24, 2006, Brewer included his affidavit of indigence with trust fund statement, affidavit relating to previous filings, affidavit of grievances, and first supplemental affidavit of grievances. The next day, the clerk issued a bill of costs totaling $1,021.00 for the filing, citation, and service fees, and the trial court ordered the clerk to assess them against Brewer in accordance with Government Code section 498.0045 and Civil Practice and Remedies Code section 14.006. The trial court also ordered payments of those costs from Brewer's inmate trust account in accordance with section 14.006(b). Finally, the trial court ordered the clerk to send a copy of all of Brewer's filings to the Attorney General's office for a review and a response on Brewer's compliance with Chapter 14 of the Civil Practice and Remedies Code and for obtaining authority to represent and to answer on behalf of the defendants. Brewer filed a second supplemental affidavit of grievances on February 9.

The defendants filed a motion to dismiss under Chapter 14, asserting: (1) Brewer failed to comply with section 14.005 and Government Code section 551.008 relating to the exhaustion and filing of administrative grievances; and (2) Brewer's claims are frivolous or malicious. The trial court found that Brewer's petition was frivolous and did not comply with Chapter 14 and dismissed the suit with prejudice. Raising three issues, Brewer appeals.

Application of Section 14.002

A prison inmate who files suit in a Texas state court pro se and who seeks to proceed in forma pauperis must comply with the procedural requirements set forth in Chapter 14 of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. §§ 14.002(a), 14.004, 14.005 (Vernon 2002). Failure to fulfill those procedural requirements will result in dismissal of an inmate's suit. See Bell v. Texas Dep't of Crim. Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

Brewer's first issue complains about the facial unconstitutionality of Chapter 14. He asserts that, despite his invocation of Chapter 14 by his filing an affidavit of indigence, once the trial court assessed costs and ordered their payment out of his inmate trust account, the continued application of Chapter 14 violates equal protection and is thus unconstitutional because his suit is treated differently than the suit of a non-indigent inmate who paid costs of suit in advance and thus would not be governed by Chapter 14.

Constitutional violations must be raised in the trial court to be preserved for appellate review. In re S.A.P., 169 S.W.3d 685, 692 (Tex.App.-Waco 2005, no pet.) (citing In re L.M.I., 119 S.W.3d 707, 710-11 (Tex.2003)). Because Brewer did not raise his equal protection argument in the trial court, he has not preserved his first issue for appellate review. TEX.R.APP. P. 33.1(a).

Chapter 14 Dismissal

Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). "To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. The standard is clarified by asking whether the trial court acted without reference to any guiding rules or principles." Spurlock v. Schroedter, 88 S.W.3d 733, 735-36 (Tex.App.-Corpus Christi 2002, no pet.) (internal citations omitted).

Affidavits Relating to the Grievance System

Section 14.005(a) mandates that an inmate who files a claim that is subject to the TDCJ grievance system file an affidavit or unsworn declaration stating the date that his grievance was filed and the date that he received the written grievance decision. TEX. CIV. PRAC. & REM.CODE ANN. § 14.005(a)(1). The section also mandates the filing of a copy of the written grievance decision. Id. § 14.005(a)(2). If an inmate does not strictly comply with section 14.005(a), a trial court does not abuse its discretion in dismissing the claim. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.-Beaumont 2003, no pet.). Brewer's second issue complains that the trial court abused its discretion for dismissing his suit because of noncompliance with section 14.005(a).

Brewer filed an original affidavit of grievances and a supplemental affidavit of grievances with his original petition, and Brewer filed a second supplemental affidavit of grievances two weeks later. In their motion to dismiss, the defendants asserted: (1) Brewer's attached grievances refer to retaliation claims against only Simental and Townsend; (2) a copy of the grievance against Simental and Townsend was not included; and (3) Brewer did not grieve against Seigle. For these reasons, the defendants contended that Brewer did not comply with section 14.005 and Brewer did not exhaust his administrative remedies.

Brewer filed six detailed grievances pertaining to his claims in this case, as shown by Brewer's original affidavit of grievances and his two supplemental affidavits of grievances. The two supplemental affidavits were necessitated by the prison's need for extensions to investigate two of the grievances (including Brewer's second (October 19) grievance against Simental and Townsend) and to replace the prison's notices of extension with the grievances upon Brewer's receipt. On appeal, defendants in effect concede that Brewer technically complied with section 14.005(a), and the record reflects such compliance. Therefore, to the extent the trial court dismissed Brewer's suit for failure to comply with section 14.005, we find no grounds upon which the trial court could have found a failure to comply, and we conclude that the trial court abused its discretion. See Spurlock, 88 S.W.3d at 733.

The other aspect of the defendants' contention goes to the substance of Brewer's grievances and the persons whom Brewer was grieving against.¹ A remedy provided by the statutory prison inmate grievance system is the exclusive administrative remedy available to an inmate for a claim for relief against the department. TEX. GOV'T CODE ANN. § 501.008(a) (Vernon 2004). "An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until: (1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; . . ." Id. § 501.008(d)(1) (...